Cearley v Haynes

Filing 9

ORDER that the 5 Motion to Withdraw and Appoint New Counsel is DENIED without prejudice, signed by Magistrate Judge David W. Christel.(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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STEVEN C CEARLEY,

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Petitioner,

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ORDER DENYING MOTION

v.

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CASE NO. 3:17-CV-05416-BHS-DWC

RON HAYNES,
Respondent.

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The District Court has referred this action filed under 28 U.S.C. § 2254 to United States
Magistrate Judge David W. Christel. Currently pending in this action is Petitioner Steven C.
Cearley’s Motion to Permit Counsel to Withdraw and to Appoint New Counsel. Dkt. 4.

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Petitioner’s counsel, Jeffrey Erwin Ellis, represented Petitioner during his state personal
restraint petition (“PRP”). Dkt. 4. Mr. Ellis has reviewed the state court proceedings and
determined the federal Petition is likely untimely filed. Id. Mr Ellis states he is a witness on the
issue of equitable tolling and the dual roles of counsel and witness creates a conflict of interest.
Id.

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ORDER DENYING MOTION - 1

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Under Local Rule 83.2, an attorney ordinarily cannot withdraw an appearance in any

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If a withdrawal will leave a party unrepresented, the motion to withdraw must
include the party’s address and telephone number. The attorney will ordinarily be
permitted to withdraw until sixty days before the discovery cut off date in a civil
case[.]

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Local Rule 83.2(b). The motion to withdraw shall also include a certification that the motion was
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served on the client and opposing counsel. Id.
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Here, discovery has not been permitted at this time. See Docket. Further, Mr. Ellis has
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articulated a potential conflict of interest. See Dkt. 4. Mr. Ellis, however, did not provide
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Petitioner’s address and telephone number in the Motion and did not include a certification that
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the motion was served on Petitioner. See id. Accordingly, Petitioner’s Motion is denied without
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prejudice. Mr. Ellis may file a renewed motion that complies with the Local Rules. As Mr. Ellis
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is still Petitioner’s counsel of record, the Court will not consider whether new counsel shall be
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appointed at this time.
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Dated this 25th day of July, 2017.
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A

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David W. Christel
United States Magistrate Judge

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ORDER DENYING MOTION - 2